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Sunday, April 11, 2010

Shoaib-Ayesha farce is legal disgrace for India

Now that the decks have been cleared for the Sania Mirza-Shoaib Malik marriage on April 15, it is worth reflecting on the controversy that riveted the subcontinent for a week. Was it, as the brigade of the superior feels, a classic case of the media pandering to the base voyeuristic instincts of the great unwashed? Or, was it a contrived and cynical controversy that led to free publicity for two individuals, much to the embarrassment of two respectable families?

There is virtue in both assertions. The aam janata are conditioned to equate the private lives of celebrities with public interest and Sania was a star whose glamour quotient equalled Bollywood and cricketing greats. Her decision to marry Shoaib was governed by personal choice, but it didn't distract from a widespread perception that the groom was unworthy of the iconic Hyderabad girl. It was this undercurrent of disapproval for the interloper, also seen as a habitual predator, which fuelled gory interest in the charges of duplicity levelled by the proverbial 'other woman'. In the dogfight of reputations, Shoaib emerged as the clear loser and this ignominy may, unfortunately, rub off on his fiancé.

Yet, there was more to the filmi melodrama played out in Hyderabad than mere salacious titillation. The relationship of Shoaib and Ayesha Siddiqui has raised disturbing questions that centre on the cavalier misuse and manipulation of the laws and institutions governing the family.

A marriage is governed by well-defined laws or social and religious customs. That Shoaib could persistently deny the fact that the nikahnama involving him and Ayesha was valid suggests that there is a huge grey area surrounding non-codified practices. In Pakistan, a marriage has to be registered — which this nikahnama was not — to be valid, while there is as yet no obligation to do the same in India. Second, the nikah was conducted over telephone, an unusual practice that Shoaib seized upon to contest the reality of the marriage to Ayesha. Indeed, had it not been for some telltale archival TV footage, the threat of non-bailable arrest under the draconian Section 498(a) of the Indian Penal Code and the intervention of community elders, the cricketer may have raised the pitch, claimed harassment and turned the whole incident into an emotive but ugly Indo-Pak spat.

Yet, Shoaib's grudging admission of his marriage to Ayesha has in turn raised awkward questions. The elders in India upheld the legitimacy of an unregistered nikahnama contracted in Pakistan, where registration is obligatory. More to the point, they upheld a telephonic nikah — something clearly not anticipated in the religious texts. In the process they have opened the floodgates of dodgy, long-distance marriages where the bride and groom don't even have to be physically present. The scope for misuse is profound and equal in scale to the fixed-term muta marriages that are a cover for prostitution.

The disturbing implications of the Shoaib-Ayesha marriage don't stop here. The talaqnama negotiated between Shoaib and the Siddiqui family may have freed Ayesha from the unenviable status of a deserted wife and put an end to all criminal proceedings but the speed with which it was concluded is ominous. It suggests that the prescribed waiting period between the first two talaqs and the final divorce is largely illusory and can be circumvented according to convenience. In view of earlier rulings by Indian Muslim clerics that a peremptory triple talaq is valid even if the husband is either drunk or in a rage, the sanctioned fast-track divorce of a celebrity is certain to become a precedent, just as the telephone talaq by Chand Mohammed to Fiza in Chandigarh last year gave ideas to many.

It may interest Indians to note that Shoaib wouldn't have been able to secure such a speedy divorce in Islamic Pakistan. Ayub Khan's Muslim Family Law Ordinance, 1961, set out a 90-day timetable, including written notice and a formal hearing by an Arbitration Council, as the procedure for divorce. Even polygamy, a step Shoaib implicitly contemplated, involves cumbersome procedures in Pakistan, the violation of which could lead to imprisonment; in India, he could have had up to four wives quite casually.

Untainted by Zia-ul Haq's subsequent tweaking and some perverse court judgments, Pakistan has relatively more equitable laws governing Muslim marriages and divorce. In India, as the Shoaib-Ayesha tangle has so vividly demonstrated, Muslim personal laws are an unregulated open market, prone to arbitrariness, theological hair-splitting, expediency and social pressures. The shifts in social consciousness and perceptions of justice that have accompanied economic growth, women's empowerment and globalization are insufficiently reflected in India's patchy Anglo-Mohammedan law.

The bizarre Shoaib-Ayesha face-off was a legal farce and a national disgrace. In its elusive quest for a consensus, India can't afford to shelve personal law reform indefinitely.


Sunday Times of India, April 11, 2010


kuttychathan said...

"Traditional Muslims are shocked at the way tennis star Sania Mirza and Mr. Malik, her husband-to-be, have been moving together even before they are formally married. “What we are seeing today is the result of such waywardness and unfettered freedom,” Ms. Aquila said."

"Religious leaders also failed to nip the crisis in the bud. “They ought to have come forward and exerted both moral and social pressure,” added Professor Sultana, who also heads the Progressive Women's Welfare Organisation."

Given above are excerpts from the report filed by the staff reporter of THE HINDU on the Shoaib-Ayesha affair.
(Muslim community unhappy with Shoaib-Ayesha row)

I would like to know your comments on the report

Gajendra said...

who exactly do you mean by the "brigade of the superior"? mr dasgupta?

Anonymous said...

swapan i dont think India has to worry about the Practices & rules That Moslims Follow in India But what is needed is some intospection with-in Indian Islamic Clergy who considers Muslim women nothing more than mere Dolls. I was astonished to see that Majority Of Pakistani Media & People were supporting Ayesha

VOX INDICA said...

This is with reference to your excellent article, "Shoaib-Ayesha farce is legal disgrace for India" in ToI of April 11, 2010. Vox Indica posted the following comment on the article – which was of course blue-pencilled by the champion of freedom of expression!

"Every one seems to have missed an interesting feature of this episode. And that is Sania Mirza's complicity in husband-to-be Shoaib Malik's malfeasance from cheating and mulcting to perjury and worse, persecuting poor Ayesha for her obesity and finally jettisoning her. Why are feminists and human rights wallahs silent? Does political correctness make it a hot potato to handle? Is Sania twice privileged because her religion and gender?"

And here is another relevant to the subject:

"Baburrao Patel, the redoubtable editor of "Mother India", said of Indian newspapers - the principal media of the time – during Indira Gandhi’s time that for them, even ‘hard stools’ of the prime minister was ‘news’. After the advent of electronic journalism, media in India has been consistently hitting new lows. A TV channel in Hyderabad has been telecasting every hour, on the hour, news about the colour, texture, smell and consistency of Sania Mirza’s - you know what!"

Arvind Singh said...

Literally translated a muta marriage is a ‘marriage for pleasure’, which is valid for a fixed period of time. Read on

Chaitali said...

I can't believe that one whole week the breaking front page news in a country like India was following Sania and Malik's marriage. I stopped subscribing for times of India. I am looking out for a more real and honest newspaper. Any suggestions.